Repatriation Commission v Boyle

[1997] FCA 1269

FEDERAL COURT OF AUSTRALIA

VETERANS’ AFFAIRS - appeal from decision of Administrative Appeals Tribunal (“AAT”) that respondent eligible for special rate of pension - whether error of law - whether AAT failed to address and decide material question - whether AAT failed to give reasons for decision - whether failure to give reasons an error of law

Veterans Entitlements Act 1975 (Cth), s 24(1)(c)

Administrative Appeals Tribunal Act 1975 (Cth), ss 43, 44

Repatriation Commission v O’Brien (1985) 155 CLR 422, cited
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, applied
Brackenreg v Comcare Australia (1995) 56 FCR 335, cited
Flentjar v Repatriation Commission (unreported, 10 October 1997, Full Federal Court), applied

REPATRIATION COMMISSION v
NORMAN KENNETH BOYLE
VG 719 of 1996

TAMBERLIN J
SYDNEY  (HEARD IN MELBOURNE)
24 NOVEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 719 of  1996

BETWEEN:	REPATRIATION COMMISSION APPLICANT
AND:	NORMAN KENNETH BOYLE RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	24 NOVEMBER 1997
WHERE MADE:	SYDNEY (HEARD IN MELBOURNE)

THE COURT ORDERS THAT:

1. The appeal be allowed.

1. The decision of the Administrative Appeals Tribunal in relation to s 24(1)(c) of the Veterans’ Entitlements Act 1975 (Cth) be set aside.

1. The matter be remitted to the Administrative Appeals Tribunal for determination in accordance with law.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 719 of 1996

BETWEEN:	REPATRIATION COMMISSION APPLICANT
AND:	NORMAN KENNETH BOYLE RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	24 NOVEMBER 1997
PLACE:	SYDNEY  (HEARD IN MELBOURNE)

REASONS FOR JUDGMENT

On 8 November 1996, a Senior Member of the Veterans’ Appeal Division of the Administrative Appeals Tribunal (“the AAT”) delivered a decision that the respondent, Mr Boyle, was eligible for payment of pension at a special rate from 23 February 1994 pursuant to s 24 of the Veterans’ Entitlements Act 1975 (Cth) (“the Entitlements Act”).

The Repatriation Commission (“the Commission”) appeals to this Court pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). The “questions of law” as framed in the Notice of Appeal are:

(a)Whether it was incumbent on the Tribunal, before concluding that Mr Boyle met the requirements to qualify for the Special Rate of pension, to decide that the loss of earnings being suffered by Mr Boyle was a loss of earnings that he would not be suffering if he was free of his incapacity from war-caused disabilities.

(b)Whether the failure of the Tribunal to decide the question referred to in question (b) constituted an error of law.

(c)Whether the Tribunal failed to discharge its obligation to provide reasons for its decision, in conformity with subs-ss 43(2) and 43(2B) of the Administrative Appeals Act 1975.

Legislative Provisions

The relevant provisions of the AAT Act are:

“s 43   Review by Tribunal

(1A)This section has effect subject to section 43AAA and to subsection 65(3) of the Australian Security Intelligence…